Judge Ruth Bader Ginsburg gave tepid support during hearings on her nomination to the U.S. Supreme Court to the most crucial precedent that governs cases involving religion and the public schools.
The 60-year-old federal appeals court judge, widely expected to win Senate confirmation to the High Court as early as this week, said she would not rush to replace the Court’s test for determining an unconstitutional government establishment of religion “unless I am sure I have a better building to replace what’s being torn down.’'
Although the test from the 1971 case Lemon v. Kurtzman is backed by most public education groups and backers of strict separation of church and state, several Justices say it should be replaced with a standard that would allow greater accommodation of religion in public schools and civic affairs.
To pass muster under the three-part test, a challenged government policy or practice must have a secular purpose, must neither advance nor inhibit religion, and must not excessively entangle government with religion.
Judge Ginsburg told the Senate Judiciary Committee last month that while the Lemon test “is very easy to criticize, it’s not so easy to offer an alternative.’'
Noting that she had dealt with only a few substantive cases involving the First Amendment’s religion clauses during her 13 years on the U.S. Court of Appeals for the District of Columbia Circuit, Judge Ginsburg said she would be “open to arguments [and] ideas’’ on the Lemon test.
No Comment on Vouchers
Judge Ginsburg was quizzed about a bevy of education topics and school-related cases during her three days of public testimony before the Judiciary Committee, which on July 29 unanimously approved her nomination.
But she exasperated some senators by refusing to comment on issues that she said might come before the High Court.
She declined to answer a question from Sen. Strom Thurmond, R-S.C., about the constitutionality of a private school voucher system.
Aid to private schools, such as vouchers, she said, “is a question that comes up again and again before the Supreme Court.’'
Views on Sex Bias
However, she did suggest skepticism about public education programs that benefit only one sex. Federal courts in recent years have ruled against the Detroit school district’s plan for a special program for African-American boys and against an all-male military institution in Virginia.
Judge Ginsburg noted that when she taught in the 1960’s at Rutgers University, a state institution in New Jersey, “there were many more places for male students than for female students. That was wrong.’'
“The Constitution requires that equal opportunity be given for girls and boys,’' she said.
Power of Federal Judges
Judge Ginsburg backed federal judges who have taken strong remedial action in desegregation cases, saying they have been forced to act when politicians and communities failed to remedy constitutional violations on their own.
She was questioned by Sen. Thurmond about the 1990 High Court decision in Missouri v. Jenkins, in which the Court ruled 5 to 4 that a federal judge could order the Kansas City, Mo., school district to raise taxes to pay for its share of a desegregation plan.
Sen. Thurmond prefaced his question by saying he thought the ruling was wrong, noting that he had introduced legislation to prevent “unelected, life-tenured federal judges’’ from imposing tax increases.
Judge Ginsburg responded that she believed judges have broad remedial authority in such cases.
“Once a violation of rights is proved, then it is the court’s responsibility to ... work out a remedy,’' she said. “Courts will work out a remedy themselves only as a very, very last resort after trying in every way possible to have the people’s elected representatives do the job they should do.’'
She added that “no federal judge, to my knowledge, ever invites this kind of case.’'
Tension in Religion Clauses
Several senators pressed Judge Ginsburg to divulge her views on the First Amendment’s religion clauses.
Sen. Patrick J. Leahy, D-Vt., wondered whether the clauses that forbid government establishment of religion and guarantee free exercise of religion were often in tension in the public school context.
“There are cases that raise a tension, but I’m not prepared here to discuss those cases,’' she responded.
The judge added that there is some “crossover’’ between religion and public education “that does not create any tension.’'
She approvingly cited the High Court’s ruling this year in Lamb’s Chapel v. Center Moriches Union Free School District that a school district would not violate the establishment clause by allowing a religious group to use a school auditorium after hours to show a religious film series.
